The Supreme Court of Vermont Law Blog: An on-going conversation about the practice of law in Vermont, featuring summaries of Vermont Supreme Court decisions, a dollop of lampooning, legal analysis, and a charming aggregation of creative thought.

It’s supposed to be a set of fresh eyes and independent of the first hearing. In this case, it seems there’s not really a factual challenge from the first hearing, though this time Mr. Weaver brought in his fiancée to testify.

So, here’s what happened. Mr. Weaver met complainant in June of last year, and they hit it off. Then complainant claimed she was pregnant, and Mr. Weaver moved into a tiny two-bedroom apartment with complainant, her roommate and the roommate’s boyfriend, and complainant’s son from a previous relationship.

Complainant testified that Mr. Weaver was generally nice to her unless there was another man mentioned. There was testimony about Mr. Weaver making threats about what would happen if he caught complainant with another man, and mention of some very violent stuff that Mr. Weaver was involved with when he was fifteen in Pennsylvania. Everyone lives together for a few months; Mr. Weaver eventually learns that complainant is really fregnant, and in November, they’re all about to be evicted the next day.

Complainant’s phone rang at 2:30 in the morning. Mr. Weaver asks who it was and complainant says she doesn’t know. The phone rang again. Mr. Weaver called the number back and a guy answered. Complainant says it’s a wrong number. Mr. Weaver doesn’t believe her.

By complainant’s account, Mr. Weaver then threatened her with a knife, and followed that up by threatening her with the knife dipped in hot oil. The roommate’s bedroom door and doorframe was cracked. Neither roommate nor roommate’s boyfriend called police despite complainant’s request that they do so. Eventually the incident ended, complainant went to sleep, and in the morning, Mr. Weaver was gone.

The next morning, complainant went to the police. The investigating officer found a knife in the kitchen sink with some kind of clear oil on the tip, as well as a cracked door and doorframe. Mr. Weaver was arrested three-and-a-half days later. He didn’t contact complainant in the meantime, and she moved to a new place.

The day of the incident, Mr. Weaver moved in with his fiancée, whose lease he’d been on since October, and lived there until his arrest. The fiancée has had the same job for thirteen years and is willing to act as Mr. Weaver’s custodian if necessary. She’s aware of the charges, but believes they’re based on lies and that Mr. Weaver is innocent and that complainant is “crazy.”

Disclaimer: the following rant is the author’s own and does not reflect the views of SCOV Law, its parents, affiliates, children, or other co-conspirators.

I’m going to play armchair quarterback for a minute here. I’m not going to pretend to know what really happened here, but there are some serious holes in complainant’s story. If Mr. Weaver has been on his fiancée’s lease since October, what does he care what complainant is up to in November? I mean, maybe he’s a really jealous dude, but if the kind of violence alleged was happening and complainant in fact requested someone call the police, then why didn’t anyone call the police? And how did complainant go to sleep after this kind of scare? I once had a client accused of forcible rape, when the real story was that my client had rebuffed the complainant’s sexual advances. Luckily, we had the evidence to prove it. Again, I’m not saying that’s what happened here, but I do think we need to apply a little more skepticism in this type of situation—especially if we’re going to lock someone up and throw away the key pretrial.

We now return to our regularly scheduled programming . . .

The opinion begins with the standard, which we’ll lay out here as well. Under this statute, a person can be held without bail when a person is charged with a felony:

[a]n element of which involves an act of violence against another person. . .[and] when the evidence of guilt is great and the court finds, based upon clear and convincing evidence, that the person’s release poses a substantial threat of physical violence to any person and that no condition or combination of conditions of release will reasonably prevent the physical violence.

Of course, the charges here involve an act of violence against another person. Here, the opinion reasons that the evidence of guilt is great, and according to the opinion, Mr. Weaver concedes this point. So much for my little rant above.

The challenge is to whether there’s clear-and-convincing evidence of a threat-of-physical-violence-to-any-person and no-condition-or-combination-of-conditions-to-prevent-it aspects of the hold-without-bail order.

Here, the opinion quickly points out, “Clear and convincing evidence is not necessarily uncontradicted evidence.” Whatever that means—sounds like nonsense-lawyer-talk to me.

The opinion looks at five factors on the threat-of-physical-violence point: (1) complainant’s testimony about Mr. Weaver’s threats; (2) Mr. Weaver’s previous convictions for serious felonies; (3) the circumstances of the event itself; (4) the lack of after-incident contact; and (5) the fact that Mr. Weaver now knows complainant has testified against him. On the whole, “The Court concludes there is clear and convincing evidence that defendant’s release would pose a substantial threat of violence to complainant.”

Mr. Weaver argues that his fiancée can supervise him, but the court isn’t convinced. The fiancée works full time and though she might be able to get leave to be in charge 24-7, that doesn’t change the fact that, in the Court’s opinion, Mr. Weaver is demonstrably dangerous.

This is a hard opinion for a defense attorney to read. But hey, it is what it is.